Moss v. Commonwealth of Kentucky

• Decision Date: 22 May 1997
• Docket Number: No. 96-SC-195-DG,96-SC-195-DG
• Citation: 949 S.W.2d 579
• Parties: Ronnie R. MOSS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 579

949 S.W.2d 579

Ronnie R. MOSS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 96-SC-195-DG.

Supreme Court of Kentucky.

May 22, 1997.

Rehearing Denied Sept. 4, 1997.

Marie Allison, Assistant Public Advocate, Frankfort, for Appellant.

A.B. Chandler, III, Attorney General, Ian G. Sonego, Assistant Attorney General, Frankfort, for Appellee.

LAMBERT, Justice.

Appellant, Ronnie R. Moss, was charged in the Christian County Circuit Court with the offenses of third degree burglary, second degree hindering apprehension, and first degree persistent felony offender. The charge of hindering apprehension was dismissed upon motion of the Commonwealth. The jury returned a guilty verdict on the third degree burglary charge and appellant then entered into a plea agreement as to the persistent felony offender charge. In accordance with the plea agreement, appellant was sentenced to five years on the underlying burglary offense and his sentence was enhanced to fifteen years for the persistent felony offender offense. Appellant appealed to the Court of Appeals where his conviction was affirmed. We granted discretionary review.

Appellant first contends that he was denied his federal and state rights to due process of law, his right to trial by a fair and impartial jury, his right to effective assistance of counsel, and his right to be present at critical stages of his trial when the trial court failed to inform him of a conversation which took place at the bench between the court and a juror. During voir dire examination, the Commonwealth Attorney asked whether any potential juror had "any relationship or knowledge of these officers [police officers who were expected to testify for the Commonwealth] that would affect your ability to be fair to both sides in this case?" No potential juror responded affirmatively and neither counsel inquired further in this regard. However, after both counsel and appellant had left the courtroom to exercise peremptory challenges, a certain juror approached the bench and stated to the judge as follows:

[h]e asked a question a while ago that I could answer okay, but one of the police officers that was in here a while ago is married to a cousin of mine and then the other one, his daddy lives next door to me. But he asked me if I could answer truthfully, but I did know them and I'm relatively close to them, but I still feel like I could do an impartial judgment, not, you know, whatever, because I don't think that knowing them would have any effect on me and that's the way he asked the question, so I didn't say anything.

The trial court stated that the juror responded "properly." No disclosure of this statement was made to either counsel. The jury was then finally selected and the juror who had spoken to the court was one of the twelve who tried appellant.

Appellant contends that if the information the juror gave to the court had been shared with him he would have challenged the juror for cause or, in the alternative, would have exercised a peremptory challenge to excuse the juror. Appellant claims that failure of the trial court to disclose the factual content of the communication prevented him from intelligently and knowingly exercising his for cause and peremptory challenges.

Initially, we must say that the trial court erred when it failed to disclose the information given by the juror. It would have been far better to have advised counsel of the communication and allowed the parties to incorporate this information into their decision-making as to the use of their challenges. Notwithstanding our view as to what the better practice would have been, we must decide the case on what actually transpired. The disclosure made by the juror was not discovered until appellant's counsel was working on an appellate brief, long after the jury had been discharged and after a final judgment had been entered. As such, we must decide whether the only available remedy shall be granted or whether the error was harmless.

Initially we must determine whether, upon full disclosure, a motion challenging the juror for cause would have been sustained. While the information disclosed revealed the existence of a limited relationship between the juror and two police officers, the relationship was not sufficient to require exclusion of the juror for cause. The disclosure did not establish any close relationship as described in Ward v. Commonwealth, Ky., 695 S.W.2d 404 (1985), Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988), or other cases which require disqualification based on implied bias arising from relationships. Our discussion of this issue in Sanders v. Commonwealth, Ky., 801 S.W.2d 665 (1991), reveals that not every "relationship" results in disqualification. Moreover, the trial court possesses considerable discretion and its view of the juror's demeanor and apparent candor must be duly considered. Mabe v. Commonwealth, Ky., 884 S.W.2d 668 (1994). Accordingly, we are unable to conclude that a for cause challenge would have been required.

Alternatively, appellant contends that he should have been furnished the additional information to permit the meaningful and intelligent exercise of peremptory challenges. In response to this we must recall that appellant failed to ask any question which would have led to disclosure of the information revealed to the court. The only question asked in this regard was a compound question by the Commonwealth, a question which the juror answered truthfully. Appellant himself bears the primary responsibility to ask the proper question on voir dire examination and a failure to so inquire will generally preclude relief. Whisman v. Commonwealth, Ky., 667 S.W.2d 394 (1984). Moreover, it is entirely speculative and quite possibly self-serving for appellant to assert that he would have used a peremptory challenge to exclude this juror. If we allowed such a practice, after-acquired information could always be used in post-trial assertions that a particular juror would have been excused had the undisclosed information been known.

The failure to make full disclosure was harmless error. RCr 9.24. In his supplemental statement to the court, the juror reiterated his ability to be impartial and demonstrated admirable candor. In view of appellant's failure to have asked any question which would have triggered a more complete response and upon our independent determination that the juror was not disqualified, the error must be disregarded. This case differs significantly from Paenitz v. Commonwealth, Ky., 820 S.W.2d 480 (1991), and Deemer v. Finger, Ky., 817 S.W.2d 435 (1991), cases in which jurors received information about the case from sources outside of the courtroom.

Appellant next claims a due process violation by the trial court's having permitted the Commonwealth Attorney who was prosecuting the case to be sworn as a witness and give testimony. In substance, the Commonwealth Attorney testified that on May 6, 1994, he and defense counsel examined the physical evidence in the case at the Commonwealth Attorney's office. Among the items of physical evidence was a pair of coveralls which the arresting officer had observed appellant wearing at the scene and which appellant had placed in a trash container. At trial, the Commonwealth Attorney sought to introduce the contents of the breast pocket of the coveralls, thirty nine ($39.00) dollars in currency and a small screwdriver. Appellant objected and a conference was held in chambers.

Appellant contended that there was a break in the chain of custody with respect to the items the Commonwealth sought to introduce, due to the fact that the items...